Madhya Pradesh High Court
Rakesh vs The State Of Madhya Pradesh on 13 September, 2021
Author: Gurpal Singh Ahluwalia
1
Rakesh Vs. State of M.P. (Cr.A.No. 449 of 2008)
HIGH COURT OF MADHYA PRADESH
GWALIOR BENCH
DIVISION BENCH
G.S. Ahluwalia & Rajeev Kumar Shrivastava J.J.
Cr.A. No. 449/2008
Rakesh
Vs.
State of M.P.
Shri Shushil Goswami and Shri Anoop Nigam, Counsel for the
Appellant.
Shri R.K. Awasthy, Counsel for the State.
Date of Hearing : 08-9-2021
Date of Judgment : 13-9-2021
Approved for Reporting : No
Judgment
13-09-2021
Per G.S. Ahluwalia J.
1.
This Criminal Appeal under Section 374 of Cr.P.C. has been
filed against the judgment and sentence dated 21-4-2008 passed by
Additional Sessions Judge, Karera, Distt. Shivpuri, in S.T. No. 98 of
2006, by which the appellant has been convicted under Section 302
of I.P.C. and has been sentenced to undergo Life Imprisonment and a
fine of Rs. 1000/- in default 6 months R.I.
2. The prosecution story in short is that on 25-3-2006 at about
Rakesh Vs. State of M.P. (Cr.A.No. 449 of 2008)
7:30 A.M., the complainant Dev Singh, lodged a FIR that he is
running a Grocery Shop. Yesterday i.e., 24-3-2006, Awadhesh,
Rakesh (appellant) and Komal had come to his house at about 12:00
P.M. along with their maternal uncle Prem Narayan for the purposes
of going to Survaya for treatment of Rakesh by exorcise. At about
11:00 P.M., all of them went to sleep. The complainant was sleeping
in his house, whereas the deceased, witnesses and the appellant were
sleeping outside in the courtyard. Premnarayan was sleeping on one
cot, whereas the appellant was sleeping on the another cot. Komal
and Awadhesh were sleeping on one cot. At about 3 A.M., the
complainant woke up due to barking of dog. He went outside and
saw that the appellant was standing along with an axe. He asked as to
why he is standing with axe and should go to sleep and therefore, the
appellant after throwing the axe, lie down on the cot. Thereafter, the
complainant went to public hand pump for fetching water.
Thereafter, Rameshwar Mahate came there for taking him to Survaya
Janwa and accordingly he went back to his house. He was informed
by Komal that Premnarayan is lying on the cot in a dead condition.
He saw that the body of Premnarayan which was covered with
blanket and had a cut. Two broken teeth were attached with the
blanket. He removed the blanket and saw that Premnarayan had
injuries below his ear and nose, which appeared to have been caused
by an axe. The mattress was also stained with blood. Therefore, he
has a suspicion that Rakesh must have killed Premnarayan.
Rakesh Vs. State of M.P. (Cr.A.No. 449 of 2008)
3. The police started investigation and sent the dead body for
postmortem. Naksha Panchnama was prepared, spot map was
prepared, the appellant was arrested, axe was seized, the statements
of the witnesses were recorded, the seized articles were sent to F.S.L.
and after completing the investigation, the police filed the charge
sheet for offence under Section 302 of I.P.C.
4. The Trial Court by order dated 24-7-2006 framed charge under
Section 302 of I.P.C.
5. The appellant abjured his guilt and pleaded not guilty.
6. The prosecution in order to prove its case, examined Khemraj
(P.W.1), Dev Singh (P.W.2), Komal (P.W.3), Sitaram (P.W.4), Ravi
Bhadoriya (P.W.5) and Dr. Pradeep Sharma (P.W. 6).
7. The appellant examined Govind Das (D.W.1) in his defence.
8. The Trial Court by impugned judgment convicted and
sentenced the appellant for the above mentioned offence.
9. Challenging the judgment and sentence passed by the Trial
Court, it is submitted that Dev Singh (P.W.2) is the only witness. The
case is based on circumstantial evidence. The chain of circumstances
is not complete. Although "A" blood group was found on the axe but
seizure of axe could not be proved by the prosecution.
10. Per contra, the Counsel for the State supported the reasoning
assigned by the Trial Court.
11. Heard the learned Counsel for the parties.
12. Before proceeding further with the case, this Court would like
Rakesh Vs. State of M.P. (Cr.A.No. 449 of 2008)
to find out as to whether the death of the deceased Premnarayan was
homicidal in nature or not ?
13. Dr. Pradeep Sharma (P.W. 6) has conducted the post-mortem of
dead body of Premnarayan and found the following injuries :
(i) One incised wound 4 cm x ½ cm x deep upto bone
present over the left side of neck. Clotted blood present.
Underlying large vessels and muscles nerve cut.
(ii) Incised wound 1 ½ cm x ½ cm x deep upto muscles
present over the neck left side clotted blood present around
the wound.
(iii) Incised wound 1½ cm x1/2 cm x deep upto bone
present over the left side of lip tip cut completely through
and through and upper lateral incisor and canine tooth
dislocated.
(iv) (wrongly mentioned as 5 in post-mortem report)
Abrasion 7 cm x ½ cm present over the chin reddish in
colour.
Injuries no. 1 to 3 were caused by sharp and cutting object
whereas injury no. 4 (wrongly mentioned as 5 in post-
mortem report) by hard and blunt object.
The cause of death was shock due to excessive bleeding. Death was
within 24 hours of the post-mortem. The post-mortem report is Ex.
P.13.
14. In cross examination, this witness has stated that injuries no. 1
Rakesh Vs. State of M.P. (Cr.A.No. 449 of 2008)
to 3 could have been caused by a single weapon as well as by
multiple weapons. Injuries no.1 to 3 were sufficient to cause death
but the injury no.1 was more dangerous.
15. Thus, from the evidence of Dr. Pradeep Sharma (P.W. 6), it is
clear that the death of Premnarayan was homicidal in nature.
16. The next question for consideration is as to whether the
appellant is the perpetrator of the offence or not?
17. Khemraj (P.W. 1) has stated that Lash Panchnama Ex. P.1 was
prepared in his presence, and one blanket, and cot were seized vide
seizure memo Ex. P.2. This witness was not cross-examined at all.
18. Dev Singh (P.W. 2) has stated that on the date of incident,
deceased Premnarayan, Komal, Awadhesh, and Rakesh had come to
his house and he was informed that they were going for the treatment
of the appellant. In the night, all the four persons were sleeping
outside the house of this witness in open. In the midnight, he heard
the barking of dog, therefore, he thought some thief might have
come, so he came out of the house and saw that the appellant was
standing behind the Gumtis kept outside his house and was having an
axe. Accordingly, he asked the appellant to go to sleep and thereafter,
again he went inside the house and slept. In the morning when he
woke up, he saw that Premnarayan was lying on the cot in a pool of
blood with injuries on his neck, near nose and found that
Premnarayan was dead. At that time, Awadhesh and Komal were
sleeping on their cots whereas the appellant was sitting on the
Rakesh Vs. State of M.P. (Cr.A.No. 449 of 2008)
another cot and the axe which the appellant was carrying in the night
was lying near the Gumti. Thereafter, he lodged F.I.R., Ex. P.3.
Accordingly, the police prepared spot map Ex. P.4. Blanket, mattress,
broken teeth were seized vide seizure memo Ex. P.2. Lash
Panchnama Ex. P.1 was prepared. The police had arrested the
appellant on the same day on the spot itself vide arrest memo Ex. P.5.
On the basis of confessional statement, Ex. P.6, the police had
recovered an axe vide seizure memo Ex. P.7.
19. In cross examination, this witness claimed that after waking up
in the morning, he went to the well for washing his face, there he was
informed by Komal that Premnarayan has been killed and then he
came back to the spot and saw the deceased Premnarayan. When
Komal had informed him, nobody else was there. Before the
information was given by Komal he was not aware that Premnarayan
has been killed. Komal had informed him at about 7:00 in the
morning. He also admitted that he has not seen that who has killed
Premnarayan and also admitted that even Komal did not inform that
who has killed Premnarayan.
20. After F.I.R. was lodged, the police came on the spot. This
witness, his wife, Awadhesh, Manoj of Karera, Sitaram of the colony
and other local residents had also come and remained there, till the
police did not go back. Some writing work was done by police in the
police station and some was done on the spot. The appellant was
arrested at about 8:00 A.M. The police had completed the
Rakesh Vs. State of M.P. (Cr.A.No. 449 of 2008)
proceedings within 2 hours. This witness could not tell that at what
time, the police went back to police station but stated that the police
had come on the spot at 8:00 A.M. Premnarayan is not related to him,
but Rakesh is related to this witness as his son-in-law because the
daughter of his Sali (Sister of wife of this witness) is married to him.
21. Komal (P.W.3) has stated that Premnarayan, Awadhesh, he
himself and Rakesh had gone to the house of Dev Singh and were
sleeping in the open ground after having their meals. Dev Singh was
sleeping inside the house. In the morning he was awaken by the wife
of Dev Singh and then he saw that Premnarayan was lying dead on
the cot. This witness expressed that he doesnot know that how
Premnarayan expired. The witness was declared hostile but nothing
could be elicited from his evidence, which may throw any light on the
incident.
22. Sitaram (P.W. 4) is a witness of seizure of Blanket, Cot, teeth.
He is also a witness of arrest of appellant and seizure of axe, but he
did not support the prosecution case and turned hostile. This witness
was cross-examined, but nothing could be elicited, which may throw
any light on the incident.
23. Ravi Bhadoriya (P.W.5) is the investigating officer. He has
stated that Dev Singh (P.W.2) had lodged the F.I.R., Ex. P.3. The spot
map, Ex. P.4 was prepared. Lash Panchnama Ex. P.1 was prepared.
On the same date, one blanket, mattress, broken teeth of the deceased
and one cot was seized vide seizure memo Ex. P.2. The statements of
Rakesh Vs. State of M.P. (Cr.A.No. 449 of 2008)
the witnesses were recorded. On the date of incident itself, the
appellant was arrested from the colony vide arrest memo, Ex. P.5. He
made a confessional statement, Ex. P.6 that he had hidden the axe in a
closet made up of stones, and accordingly it was seized vide seizure
memo Ex. P.7. The seized articles were sent to F.S.L. vide memo Ex.
P.10 and report is Ex. P.11.
24. This witness was cross-examined. He stated that the F.I.R. was
lodged at 7:30 A.M. and reached on the spot within 30 to 45 minutes.
The incident took place in the house of Dev Singh (P.W.2). He
further stated that since, Premnarayan, appellant and others had come
for the treatment of appellant, therefore, they were not having any
weapon. He further stated that he had seized the axe on the disclosure
made by the appellant, but could not clarify that from where the
appellant had got the said axe. He further stated that he had not taken
the statement of Awadhesh. He denied that since, Awadhesh had
informed that the deceased has been killed by Dev Singh (P.W.2),
therefore, he did not record his statement. He tried to clarify that
since, Awadhesh was the relative of the appellant, and therefore, was
not inclined to give statement. However, admitted that this fact has
not been mentioned by him in the police case diary. He further stated
that the deceased was the maternal uncle of the appellant and had
brought the appellant to the house of Dev Singh for exorcise. He
further expressed his ignorance that the deceased was carrying an
amount of Rs. 10,000/- but stated that at the time of preparation of
Rakesh Vs. State of M.P. (Cr.A.No. 449 of 2008)
Lash Panchnama he had found Rs.625/- in his purse. He further
denied that during the investigation he had got an information that
the deceased was killed by Dev Singh for the amount of Rs.10,000/-
which Premnarayan was carrying. He stated that he had come to
know that the appellant was to be taken to some exorciser.
25. Thus, the entire case hinges around the evidence of Dev Singh
(P.W. 2) and Ravi Bhadoriya (P.W.5). The evidence of Komal (P.W.3)
can be relied upon to the extent that Premnarayan (Deceased),
Awadhesh, Komal (P.W.3) and Rakesh (Appellant) had stayed in the
house of Dev Singh (P.W.2). Further, the dead body of the deceased
Premnarayan was recovered from the house of Dev Singh (P.W.2).
26. Dev Singh (P.W.2) in the F.I.R., Ex. P.3 has stated that at about
3:00 A.M., he woke up after hearing barking of a dog and came out
of the house and saw that the appellant was standing along with an
axe and therefore, he asked as to why he is standing. Then after
throwing the axe by his side, the appellant lay down on the cot.
Whereas in the Court evidence, this witness has stated that it was
midnight and he woke up after hearing the barking of dog and
thought that there might be some thief, so he came out of the house
and saw that the appellant was standing along with an axe behind the
Gumti. Thereafter, this witness asked the appellant to go to bed and
this witness also went to sleep. In the morning when he woke up and
came out of the house and found that Premnarayan was lying dead in
a pool of blood and the appellant was sitting on a different cot with
Rakesh Vs. State of M.P. (Cr.A.No. 449 of 2008)
an axe whereas Awadhesh and Komal were sleeping on the different
cot. Although this witness was not confronted with his F.I.R., Ex. P.3
to prove omissions and contradictions, but in view of certain
admissions made by this witness in his cross-examination, this lapse
on the part of the defence counsel would not prove fatal to the
defence. In cross-examination, this witness has stated that after
waking up in the morning, he went to well for washing his face and
there, he was informed by Komal about the murder of Premnarayan
and prior to that he was not aware of the fact that Premnarayan has
been killed. This witness has also admitted that the police had
reached on the spot at about 8:00 A.M. and went back after 2 hours of
investigation. He has also stated that the appellant was also arrested
by the police from the spot at 8:00 A.M., i.e., immediately after
coming on the spot. Ravi Bhadoriya (P.W.5) has also admitted that
the F.I.R.,Ex. P.3 was lodged at 7:30 A.M. and he reached on the spot
within 30 to 45 minutes. Thus, it is clear that the police must have
reached on the spot by 8:00 A.M.
27. In examination-in-chief, Dev Singh (P.W.2) has stated that
when he came out of the house, he found that Premnarayan was lying
in a dead condition in a pool of blood and from thereafter, he went to
police station, but in cross-examination, this witness has stated that
after coming out of his house, he went to well, where he was
informed by Komal and prior to that he was not aware of the murder
of Premnarayan. Thus, it is clear that this witness is not a trustworthy
Rakesh Vs. State of M.P. (Cr.A.No. 449 of 2008)
witness. It is not possible that if a person goes to a well after
crossing the cots on which the witnesses and deceased were sleeping
and would not be able to notice that the deceased Premnarayan is
lying dead in a pool of blood. As already pointed out, since, the
attention of this witness was not drawn towards the contradictions in
the F.I.R., Ex. P.3, therefore, the information given by this witness to
the police, that he woke up at 3:00 A.M., and saw that the appellant
was standing along with an axe and thereafter he went to well cannot
be read against this witness, but the admissions made by this witness
in his cross-examination, thereby giving a complete different picture
of incident, is sufficient to discard his evidence.
28. This witness is also a witness of seizure of axe vide seizure
memo, Ex. P.7 on the disclosure statement, Ex. P.6 made by the
appellant. Dev Singh (P.W.2) has not stated that the axe was seized
from a closet made up of stones. On the contrary, this witness has
stated that the axe was lying at a nearby place from where it was
seized, whereas Ravi Bhadoriya (P.W. 5) has stated that the axe was
seized from a closet made up of stones. Thus, it is held that the
seizure of axe on the disclosure statement made by the appellant is
not proved beyond reasonable doubt and from the evidence of Dev
Singh (P.W. 2) that the axe was lying in an open condition at an open
place which was accessible for general public. Thus, the
circumstance of presence of blood group "A" on the axe and cloths of
the deceased, cannot be used against the appellant.
Rakesh Vs. State of M.P. (Cr.A.No. 449 of 2008)
29. Further, Dev Singh (P.W. 2) has stated that the appellant was
arrested at 8:00 A.M. itself, whereas as per arrest memo Ex P.5, the
appellant was arrested at about 11:00 P.M. It is also not out of place
to mention here that there is an overwriting on the time of arrest and
it appears that 12:00 was made 11:00. The confessional statement of
the appellant was recorded at 11:20 A.M., Ex. P.6 and the seizure of
axe was made at 11:40 A.M., Ex. P.7. Further there is also an
overwriting on seizure memo Ex. P.2 by which blanket, mattress,
broken teeth and cot were seized. Earlier the time was mentioned as
9:30 but thereafter it was scored out. Thereafter, it was written as
11:00, which was made "9300" by overwriting on the same. The
overwritten part ie, "9300" doesnot contain any small signatures or
counter signatures of the I.O. Thus, it is clear that the entire writing
work was done by the IO in the police station and not on the spot.
This finding also finds corroboration from the admission of Dev
Singh (P.W. 2) that the police had reached on the spot at 8:00 A.M.
and after completing the investigation within 2 hours, went back to
the police station. Although the attention of Ravi Bhadoriya (P.W. 5)
was not drawn towards the overwriting on the dates, but since, the
overwriting is writ large, therefore, the burden is on the prosecution
to remove all doubts so as to prove the guilt of the appellant beyond
reasonable doubt.
30. There is another aspect of the matter. According to Dev Singh
(P.W. 2) himself, the appellant did not run away from the spot and
Rakesh Vs. State of M.P. (Cr.A.No. 449 of 2008)
was present on the spot even when the police had come. This also
indicates towards the innocence of the appellant.
31. So far as the motive aspect is concerned, the Trial Court has
wrongly relied upon the clarification given by Ravi Bhadoriya (P.W.
5) in this regard. Dev Singh (P.W. 2) has not stated that the appellant
was angry on account of the fact that the deceased was insisting for
his treatment by an exorciser, and there is no other witness to prove
this aspect, then how the Investigating Officer, came to know about
this fact is not known. Further, the motive aspect is to be proved by
leading evidence, and the Investigating Officer, on his own cannot
develop any motive on the part of the appellant, specifically when the
investigating officer, has neither conducted any investigation that
whether there was any person who was exorciser or not?
32. Thus after marshaling the evidence which has come on record,
it is held that Dev Singh (P.W.2) is not a reliable witness. Ravi
Bhadoriya (P.W. 5) has also not conducted the investigation in a
proper manner. He also did not record the statement of Awadhesh.
The explanation given by Ravi Bhadoriya (P.W.5) that Awadhesh was
not inclined to give statement as he was relative of appellant cannot
be accepted in absence of any such entry in the police case diary.
33. Accordingly, it is held that the prosecution has miserably failed
to prove the guilt of the appellant beyond reasonable doubt.
34. As a consequence thereof, he is acquitted of the charge under
Section 302 of I.P.C.
Rakesh Vs. State of M.P. (Cr.A.No. 449 of 2008)
35. Ex consequenti, the judgment and sentence dated 21-4-2008
passed by Additional Sessions Judge, Karera, Distt. Shivpuri, in S.T.
No. 98 of 2006 is hereby set aside.
37. The appellant is in jail. He be released immediately, if not
required in any other case.
38. The record of the Trial Court be returned back immediately
with a copy of this judgment for necessary information and
compliance.
39. The appeal succeeds and is hereby Allowed.
(G.S. Ahluwalia) (Rajeev Kumar Shrivastava)
Judge Judge
ARUN KUMAR
MISHRA
2021.09.13
15:11:03 +05'30'
